People v. Gomez

• Decision Date: 22 April 2010
• Citation: 899 N.Y.S.2d 435,72 A.D.3d 1337
• Parties: The PEOPLE of the State of New York, Respondent, v. Joselito GOMEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 435

72 A.D.3d 1337

The PEOPLE of the State of New York, Respondent,

v.Joselito GOMEZ, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 22, 2010.

Mary Beth Hynes, Burnt Hills, for appellant.

Terry J. Wilhelm, District Attorney, Catskill (Danielle D. McIntosh of counsel), for respondent.

Before: MERCURE, J.P., ROSE, LAHTINEN, KAVANAGH and EGAN JR., JJ.

EGAN JR., J.

Appeal from a judgment of the County Court of Greene County (Pulver Jr., J.), rendered September 18, 2007, convicting defendant upon his plea of guilty of the crime of attempted bribery in the third degree.

Defendant, a prison inmate, was charged with bribery in the third degree and promoting prison contraband in the seconddegree. Pursuant to a plea agreement, defendant waived his right to appeal and pleaded guilty to attempted bribery in the third degree in satisfaction of the charges. Defendant was thereaftersentenced as a second felony offender to the agreed-upon term of 1 1/2 to 3 years in prison, with the sentence to be served consecutively to the one he was then serving for murder in the second degree. Defendant now appeals.

We affirm. Initially, as defendant did not move to withdraw his plea or to vacate the judgment of conviction, his claims that his plea was not voluntarily entered and that he was denied the effective assistance of counsel are not preserved for our review ( see People v. Dixon, 66 A.D.3d 1237, 1237, 886 N.Y.S.2d 838 [2009], lv. denied 13 N.Y.3d 906, 895 N.Y.S.2d 320, 922 N.E.2d 909 [2009]; People v. Dantzler, 63 A.D.3d 1376, 1377, 881 N.Y.S.2d 222 [2009] ). In any event, we would find, based upon our review of the transcript of the plea proceedings, that defendant's guilty plea was entered knowingly, voluntarily and intelligently. Although defendant informed County Court that he was taking prescription medication at the time of his plea, the court properly inquired as to whether the medication impaired his ability to understand the proceedings. Defendant's responses established that defendant understood his rights, the terms of the plea agreement and the nature of the proceedings and that the medication did not affect his ability to render a knowing and voluntary plea ( see People v. Perry, 50 A.D.3d 1244, 1245, 855 N.Y.S.2d 733 [2008], lv. denied 10 N.Y.3d 963, 863 N.Y.S.2d 147, 893 N.E.2d 453 [2008]; People v. Dalton, 47 A.D.3d 1010, 1011, 850 N.Y.S.2d 236 [2008]; People v. Johnson, 243 A.D.2d 997, 998, 663 N.Y.S.2d 910 [1997], lv. denied 91 N.Y.2d 927, 670 N.Y.S.2d 408, 693 N.E.2d 755 [1998] ). Further, the fact that the medication was apparently used to treat a mental illness did not compel County Court to conduct a CPL article 730 hearing to determine defendant's competency prior to accepting his plea. "A trial court is not required to hold a CPL article 730 hearing simply because a defendant has a history of mental illness, and such history does not necessarily render a defendant incompetent to enter a knowing and voluntary plea" ( People v. Barclay, 1 A.D.3d 705, 706, 766 N.Y.S.2d 636 [2003] [citations omitted], lv. denied 1 N.Y.3d 567, 775 N.Y.S.2d 785, 807 N.E.2d 898 [2003] ). In light of defendant's responses to the court's inquiries as to his ability to understand the proceedings, we find no abuse of discretion in the court's acceptance of the plea without holding a competency hearing ( see People v. Harrison, 52 A.D.3d 969, 970, 859 N.Y.S.2d 511 [2008], lv. denied 11 N.Y.3d 737, 864 N.Y.S.2d 395, 894 N.E.2d 659 [2008]; People v. Kron, 8 A.D.3d 908,...